Presidential Power - The war power as prerogative

Franklin D. Roosevelt believed a president should exude strength and use
his power boldly to achieve what he perceived as desirable goals. In his
inaugural address in 1933, alluding to the nation's economic crisis
he said, "I shall ask Congress for…broad Executive power to
wage a war against the emergency, as great as the power that would be
given me if we were in fact invaded by a foreign foe."

From the start, Roosevelt had to contend with the isolationist and
revisionist theory that America's intervention in World War I had
stemmed from a malign presidential discretion in foreign affairs. In 1936
his perspective on executive authority received a boost from the Supreme
Court case
United States
v.
Curtiss-Wright Export Corporation
. This case involved the right of the president to ban the sale of arms to
a belligerent, in this instance to Bolivia during the Chaco War with
Paraguay. The Court's ruling, in the words of Justice George
Sutherland, described the president incorrectly as "the sole organ
of the federal government in the field of international relations."
This decision would confer an erroneous legitimacy beyond the Constitution
on the unilateral actions of executives in matters of war and peace. In
contrast, the legislative branch wanted to prevent the president from
manipulating the nation into war.

So, in legislation known as the neutrality acts, Congress placed
restraints on the president's power in foreign affairs. Roosevelt
disliked the laws but accepted them because they might quiet the public
fear of "excessive fear of presidential control." In a
speech in Chicago on 5 October 1937, he spoke out against the neutrality
laws as favoring aggressors, whom he wanted to quarantine. He also
expressed alarm over a referendum movement headed by Louis Ludlow, a
Democratic representative from Indiana, that proposed a constitutional
amendment requiring voter approval before a declaration of war could go
into effect. Roosevelt contended it "would cripple any President in
his conduct of our foreign relations." His opposition proved
critical in defeating it.

As war loomed in Europe, Roosevelt became increasingly assertive about his
foreign policy prerogatives, announcing in January 1939 he would as
commander in chief provide arms to Britain and France for defense against
Nazi Germany. In September, when Adolf Hitler triggered World War II by
invading Poland, the president's standing in opinion polls shot up.
Increasingly, he acted in foreign matters independently of Congress, as
when Britain requested old warships in exchange for some of its bases in
the Western Hemisphere. Even though legislation prohibited such a
transaction, Roosevelt made use of Sutherland's opinion,
circumvented the Senate, and made the deal. Critics condemned the swap as
a breach of the Constitution and violation of international law, but it
stood.

Proclaiming the United States the arsenal of democracy, Roosevelt in March
1941 persuaded Congress to pass the Lend-Lease Act, which permitted him to
give arms to beleaguered Britain. Critics called it a qualified
declaration of war and the most sweeping delegation of legislative power
ever made to a president. When German submarines sank vessels carrying
American munitions, he ordered the navy to patrol the North Atlantic sea
lanes to protect the shipping. Patrol in this case functioned as a
euphemism for convoy, an act of war under international law. By unilateral
executive action he ordered troops to occupy Greenland, imposed
increasingly stiff economic sanctions against Japan, and took over
Iceland. By November, clashes with Axis submarines brought the United
States into an undeclared naval war with Nazi Germany, a belligerent
status he did not make clear to the American people. On his own authority,
he also promised armed support to the British, Dutch, and Thais in Asia if
Japan struck at them.

When Japan on 7 December 1941 attacked the United States, with Germany and
Italy then declaring war, the president asked Congress to recognize that a
state of war already existed. Political opponents and others charged him
with leading the nation into war through deception via the back door of
Asia rather than Europe and by maneuvering the Japanese into firing the
first shot because he could not obtain enough support for a congressional
declaration of war. No one had proof for these theories, but the
president's supporters as well as his critics acknowledge that step
by step he exploited his foreign relations power to move the nation toward
active belligerency.

Roosevelt also utilized his augmented power to conduct the war with
virtually dictatorial authority. He seldom referred to Congress, violated
civil liberties by incarcerating with an executive order thousands of
Japanese Americans, inaugurated secret security files on government
employees, and instituted price controls. "This total
war…," he told Congress, "makes the use of executive
power far more essential than in any previous war." He added,
"I shall not hesitate to use every power vested in me" to
win the war. With Winston Churchill and Joseph Stalin at Yalta, he slipped
around Congress with personal promises on territorial questions and
international organization. He assumed full responsibility for developing
the atomic bomb. Viewing himself as the nation's steward and his
leadership role as personal and institutional, he rarely allowed anything
to stand in the way of his exercise of power. The courts supported that
role, upholding as constitutional every wartime measure he took.
Nonetheless, his hoarding of power alarmed the enemies of executive
aggrandizement.

In thirteen years, Roosevelt raised presidential power in foreign affairs
to a level higher than that reached by any of his predecessors. As had
Lincoln and Wilson, he upset the constitutional balance of checks and
balances using the same justification of the need to rescue the nation
from a great peril. Various scholars maintain he transformed the
presidency, or, at least in the area of foreign policy, brought changes to
it that have endured and influenced successors.

The public, together with academics who admired the strong president
regardless of how he stretched his constitutional powers, welcomed the
changes and praised Roosevelt and his leadership style. This admiration,
along with the cumulative effect of the previous presidents who had
swelled executive authority in dealing with foreign affairs, laid the
basis for a kind of cult that exalted the presidency at the expense of
Congress. The flowering of this cult could be seen during the presidency
of Harry S. Truman and the start of the Cold War.

Roosevelt had kept Truman in the dark on the intricacies of foreign
policy. For instance, Truman did not learn the details of the atomic arms
project until several weeks into office, but he soon made one of his most
controversial foreign policy decisions. He ordered the atomic bombing of
Hiroshima and then of Nagasaki. Skeptics denounced this action as
ethically wrong and unnecessary, but he took full responsibility for it as
necessary to save lives. Thereafter, he became accustomed to wielding
power and was determined to prove himself a take-charge executive.

Truman asked Congress to extend the executive's wartime power as
Roosevelt had possessed it. In December 1945 the legislators agreed and
Truman carried that authority into the Cold War. Largely at his
insistence, in the Atomic Energy Act of August 1946, Congress placed
control over nuclear weapons in the president's hands. Proponents
of the strong-executive concept then began to argue that atomic weapons
and the need for quick response to foreign dangers increased the need for
presidents to have more power as commander in chief.

In January 1946, with an executive directive, Truman created a central
intelligence agency group directly responsible to the president. In July
1947, in the National Security Act, Congress converted the group into the
Central Intelligence Agency, later freed it from budgetary controls
imposed on other agencies, and with it amplified presidential power
abroad. In addition to analyzing intelligence, the CIA quickly engaged in
covert activities. It thus came to serve as a shield for secret executive
decisions on the use of military force. The legislation also established
the National Security Council, a body designed to advise the president on
all matters affecting military power and national security as well as
foreign policy. Since the law, amended in 1949, required neither the
council nor the national security adviser to be approved by Congress or to
report to it, the act had the effect of enhancing the president's
power in deploying the military on his own and on embarking unilaterally
on foreign policy ventures that could lead to war.

As an avid anticommunist, Truman used his power to embark on a program,
usually called the Truman Doctrine, of containing Soviet expansion, at
first in Turkey and Greece and then in Western Europe with the Marshall
Plan. This program, approved by Congress, became the vehicle for another
expansion of executive authority in foreign affairs. It had precedents, as
in Theodore Roosevelt's policing in the Caribbean, but since Truman
viewed communism as a global threat, he asserted a right to intervene
militarily anywhere in the world when he deemed the action proper. He
converted the nation's military machine into the world's
foremost anticommunist police force with himself as its commander in
chief.

During a crisis that began when the Soviets in June 1948 blockaded Berlin,
110 miles into East Germany, the question of presidential power came up in
the courts. As usual, they upheld executive activism, ruling that
"the war power does not necessarily end with the cessation of
hostilities." Justice Robert H. Jackson, who had justified the
stretching of executive authority in the destroyer bases deal, objected to
"this vague, undefined and undefinable 'war
power'" that presidents "invoked in haste" to
deal with crises, often of their own making. "No one will
question," he wrote, "that this power is the most dangerous
one to free government in the whole catalogue of powers."

Truman nonetheless pressed ahead with his Cold War policy. He negotiated
and persuaded Congress to approve a series of multilateral treaties that
ended the nation's traditional policy of avoiding formal alliances
in time of peace. Consequently, the Inter-American Treaty of Reciprocal
Assistance (1947, known also as the Rio Pact), the charter of the
Organization of American States (1948), and the North Atlantic Treaty
(1949) placed more of the war-making power in the executive branch.

In January 1950, as part of his anticommunist crusade, Truman on his own
authorized the building of a hydrogen bomb. Five months later, he made
another swift decision of worldwide significance. When communist forces
from the north invaded the Republic of Korea to the south, he intervened
militarily. In rushing into hostilities, he circumvented both Congress and
the United Nations Security Council. When opponents in Congress wondered
if Truman had arrogated to himself the authority of declaring war, he
denied being at war. Using a traditional euphemism, he called the conflict
a police action. Later, though, he contended that "when a nation is
at war, its leader…ought to have all the tools available for that
purpose." When pressed to seek a congressional declaration, he
dismissed the idea because public opinion polls indicated broad support
for his stance. When the war went badly, with mounting costs and
casualties, the polls reported a sharp decline in his popularity and
support for what many called "Truman's War."

As the discontent grew, so did distrust of presidential authority as
wielded by Roosevelt and Truman. In consequence, in February 1951 a
movement for a two-term cap for any president succeeded in making the
limitation part of the Constitution as the Twenty-second Amendment. As
time would reveal, it did not curb presidential power in foreign matters.
In April 1952, when Truman seized steel mills under the guise of his war
power, his elastic use of executive authority received another setback. In
one of its rare decisions against a president in time of war, the Supreme
Court ruled the takeover unconstitutional because it considered neither
the Korean War nor the Cold War full-scale emergencies that justified such
an arrogation of executive power.

Again, a president had amplified the foreign policy powers of his office
beyond his predecessors. Where others had employed the military on their
own in small ventures abroad or had maneuvered Congress and the public
into supporting major wars, Truman, without congressional assent,
initiated a large-scale war against a sovereign nation backed by two great
powers. He and his advisers cited earlier small commitments of troops as
precedents for his actions, but legal scholars pointed out that reliance
on previous executive breaches of the constitutional war power did not
legitimate subsequent violations. He and his advisers, such as Secretary
of State Dean Acheson, also claimed that as commander in chief he
possessed a prerogative to initiate war. Other presidents had also
theorized about inherent power, but he became the first to exploit that
concept as though it were fact. Regardless of the questioned legitimacy of
Truman's use of the foreign policy power, other presidents would
follow his lead.